Greenough v. State

• Decision Date: 17 March 1939
• Docket Number: 30485.
• Citation: 284 N.W. 740,136 Neb. 20
• Parties: GREENOUGH v. STATE.
• Court: Nebraska Supreme Court

284 N.W. 740

136 Neb. 20

GREENOUGH v. STATE.

No. 30485.

Supreme Court of Nebraska.

March 17, 1939

Syllabus by the Court.

1. The objection that the defendant in a criminal case has not had a preliminary examination is waived unless raised before he enters a plea of not guilty.

2. The force and effect to be given the fact of possession of stolen property recently after the theft, and the sufficiency or insufficiency of such evidence, are solely for the jury to be considered in connection with all other evidence adduced at the trial.

3. The venue of a crime may be established by circumstantial evidence.

4. Under the provisions of section 29-2620, Comp.St.1929, a defendant eligible for an indeterminate sentence is entitled thereto only in the discretion of the trial court.

Error to District Court, Brown County; Dickson, Judge.

Lawrence Greenough was convicted of larceny, and he brings error.

Judgment modified, and, as modified, affirmed.

Sterling F. Mutz and Robert S. Stauffer, both of Lincoln, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and Don Kelley, Asst. Atty. Gen., for the State.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER MESSMORE, and JOHNSEN, JJ.

CARTER, Justice.

Plaintiff in error, who will hereafter be referred to as the defendant was convicted of the crime of larceny of property valued by the jury at $55, and a sentence of five years in the state penitentiary was imposed.

The record discloses that a gasoline station in Ainsworth, Nebraska, belonging to Nicholas A. Sawyer was broken into on the night of February 11, 1938, and robbed of five new automobile tires. It further appears that the defendant and a companion appeared in Valentine, Nebraska, early in the morning of February 12, 1938, and sold the tires to a tire dealer for $2.50 each when their market value was more than twice that amount. The defendant was seen by several people in Valentine that morning and all identified the defendant subsequent to his arrest. The tires were identified beyond question as the ones taken from the gasoline station, and the automobile being used by the defendant on the night of the robbery was subsequently found in the possession of one Everhart in Ainsworth. The defendant offered no evidence. Upon this state of facts the jury returned a verdict of guilty.

Defendant complains of the fact that he did not receive a preliminary hearing. It appears that a complaint was filed in the county court of Brown county and the defendant was taken into custody under a warrant issued from that court. Without a preliminary hearing being held, an information was filed in the district court for Brown county on February 24, 1938, and on that date the defendant was arraigned and a plea of not guilty entered. This clearly was a waiver of his right to a preliminary hearing. The objection that the defendant in a criminal case has not had a preliminary examination is waived unless raised before he enters a plea of not guilty. Dinsmore v. State, 61 Neb. 418, 85 N.W. 445; Meyers v. State, 104 Neb. 356, 177 N.W. 177; State v. Boehm, N.D., 279 N.W. 824, 116 A.L.R. 547.

Defendant contends that the evidence is insufficient to sustain a conviction where it does not show that defendant was in the county at the time of the commission of the crime. The evidence must show, of course, that the defendant committed the crime at the time and place charged, but the law does not require an eyewitness. Under the doctrine announced in this state no presumption of guilt arises from the mere possession of stolen property. The force and effect to be given the fact of possession of stolen property recently after the theft, and the sufficiency or insufficiency of such evidence, are solely for the jury when weighed in connection with all other evidence adduced at the trial. Williams v. State, 60 Neb. 526, 83 N.W. 681; Ridenour v. State, 119 Neb. 688, 230 N.W. 587.

The defendant in this case was in possession of the stolen property very shortly after the robbery and his possession is unexplained. He sold the property late at night for much less than it was worth. The facts and circumstances surrounding the commission of the crime and the subsequent sale of the property by the defendant are in no way inconsistent with his guilt. The jury were clearly justified in concluding that the defendant was...